<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: November 25, 1998
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(Date of earliest event reported)
HELLER FINANCIAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-6157 36-1208070
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(Commission File Number) (IRS Employer Identification Number)
500 West Monroe Street, Chicago, Illinois 60661
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(Address of principal executive offices) (Zip Code)
(312) 441-7000
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(Registrant's telephone number, including area code)
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Item 5. Other Events
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On November 25, 1998, Heller Financial, Inc. ("Registrant") filed with the
Securities and Exchange Commission a Prospectus Supplement under its
Registration Statement on Form S-3 (file No. 333-58723) with respect to the
proposed public offering of 1,250,000 shares of Fixed Rate Noncumulative
Perpetual Senior Preferred Stock, Series D ("Preferred Stock"). Attached
herewith are the forms of certain documents to be used in connection with such
offering.
Item 7. Financial Statements and Exhibits
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(c) Exhibits
1 Form of Underwriting Agreement between Registrant and Lehman Brothers
Inc., Chase Securities Inc. and Credit Suisse First Boston Corporation
4(a) Form of Certificate Of Designation, Preferences And Rights Of Fixed Rate
Noncumulative Perpetual Senior Preferred Stock, Series D
4(b) Form of Stock Certificate for Preferred Stock
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: November 25, 1998
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HELLER FINANCIAL, INC.
By: /s/ Lauralee E. Martin
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Lauralee E. Martin
Title: Executive Vice President and
Chief Financial Officer
2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Pages
- ------- --------------
<S> <C> <C>
1 Form of Underwriting Agreement between Registrant and Lehman 5-29
Brothers Inc., Chase Securities Inc. and Credit Suisse First
Boston Corporation
4(a) Form of Certificate Of Designation, Preferences And Rights Of Fixed 30-38
Rate Noncumulative Perpetual Senior Preferred Stock, Series D
4(b) Form of Stock Certificate for Preferred Stock 39
</TABLE>
3
<PAGE>
$125,000,000
EXHIBIT 1
HELLER FINANCIAL, INC.
1,250,000 Shares
Fixed Rate Noncumulative Perpetual Senior Preferred Stock,
Series D
UNDERWRITING AGREEMENT
-----------------------
___________, 1998
Lehman Brothers Inc.
Chase Securities Inc.
Credit Suisse First Boston Corporation
As Underwriters
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Heller Financial, Inc., a Delaware corporation (the "Company"),
proposes to sell 1,250,000 shares (the "Shares") of the Company's Fixed Rate
Noncumulative Perpetual Senior Preferred Stock, Series D (liquidation preference
$100.00 per share) (the "Preferred Stock"), bearing cash dividends that are
payable quarterly, if declared, at a rate of __________% of the liquidation
preference of the Preferred Stock, or $________________ per share, per annum.
This is to confirm the agreement concerning the purchase of the Shares from the
Company by the Underwriters named in Schedule 1 hereto (the "Underwriters").
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-58723)
with respect to the Company's Class A Common Stock and certain of the
Company's debt securities, warrants to purchase debt securities and
senior preferred stock, including the Shares, has (i) been prepared by
the Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rule and Regulations") of the United
States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii)
<PAGE>
become effective under the Securities Act. Copies of such
registration statement have been delivered by the Company to you as
the Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Preliminary Prospectus" means each prospectus
included in such registration statement, or amendments thereof, before
it became effective under the Securities Act, any prospectus filed
with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(b) of the Rules and Regulations and
any preliminary form of the Prospectus Supplement; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and deemed to be a part of the registration
statement as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations; and "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to Rule
424(b)(3) of the Rules and Regulations. A prospectus supplement (the
"Prospectus Supplement") reflecting the terms of the Preferred Stock,
the terms of the offering thereof and the other matters set forth
therein has been prepared and will be filed pursuant to Rule 424(b)(2)
of the Rules and Regulations in accordance with Section 5(a) hereof.
The Prospectus as supplemented by the Prospectus Supplement is
hereinafter referred to as the "Preferred Prospectus." Reference made
herein to any Preliminary Prospectus, the Prospectus, the Preferred
Prospectus or the Registration Statement shall be deemed to refer to
and include any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act, as of the date of
such Preliminary Prospectus, the Prospectus or the Preferred
Prospectus or the effective date of the Registration Statement, as the
case may be, and any reference to any amendment or supplement to any
Preliminary Prospectus, the Prospectus, the Preferred Prospectus or
the Registration Statement shall be deemed to refer to and include any
document filed under the United States Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus, the Prospectus or the Preferred Prospectus or
the effective date of the Registration Statement, as the case may be,
and incorporated by reference in such Preliminary Prospectus, the
Prospectus, the Preferred Prospectus or the Registration Statement, as
the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of
the Company filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus, the Preferred Prospectus or the
Registration Statement.
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(b) The Registration Statement and the Prospectus conform, and
the Prospectus Supplement and any further amendments or supplements to
the Registration Statement and the Preferred Prospectus will, when
they become effective or are filed with the Commission, as the case
may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the
applicable Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus, the Prospectus Supplement and any amendment or supplement
thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Preferred Prospectus in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter specifically for
inclusion therein, which information consists solely of the
information specified in Section 8(e).
(c) The documents incorporated by reference in the Preferred
Prospectus, when they were filed with the Commissions, conformed in
all material respects to the requirements of and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Preferred Prospectus, when such
documents are filed with Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(d) The Company and each of its subsidiaries (as defined in
Section 15 hereof) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified could not
reasonably be expected to have a material adverse effect on their
businesses or properties, and have all power and authority necessary
to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(e) The Certificate of Designations, Preferences and Rights
relating to the Preferred Stock (the "Certificate of Designations")
has been duly authorized and, when filed by the Company with the
Secretary of State of the State of Delaware,
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will be duly executed and in full force and effect and will conform to
all statements relating thereto in the Preferred Prospectus.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Company has an authorized capitalization as set forth in
the Preferred Prospectus. All of the issued shares of capital stock
of the Company have been duly authorized and validly issued, are fully
paid and non-assessable and conform to the descriptions thereof
contained, or incorporated by reference, in the Preferred Prospectus;
the Shares have been duly and validly authorized and upon issuance and
delivery and payment therefor in the manner described herein, will be
duly and validly issued, fully paid and non-assessable and will
conform to the descriptions thereof contained in the Preferred
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and, except for any
subsidiaries that would not be considered "significant subsidiaries"
under Rule 1-02(w) of Regulation S-X promulgated by the Commission,
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(h) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
herein will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the properties or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or any statute or order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of their properties or assets;
and except for registration of the Shares under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated herein.
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest quarterly financial statements
included, or incorporated by reference, in the Preferred Prospectus,
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
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insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Preferred Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Preferred
Prospectus.
(j) The financial statements (including the related notes and
supporting schedules) incorporated by reference in the Preferred
Prospectus present fairly the financial condition and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved.
(k) Arthur Andersen LLP, who have certified certain financial
statements of the Company, whose report is incorporated by reference
in the Preferred Prospectus and who have delivered the initial letter
referred to in Section 7(f) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations during
the periods covered by the financial statements on which they reported
that are incorporated by reference in the Preferred Prospectus.
(l) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or asset of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(m) No relationship, direct or indirect, exists between or among
the Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other
hand, which is required to be described in the Preferred Prospectus,
or the documents incorporated therein by reference, and is not so
described.
(n) Since the date as of which information is given in the
Preferred Prospectus through the date hereof, and except as may
otherwise be disclosed in the Preferred Prospectus, the Company has
not (i) issued or granted any securities, (ii) incurred any liability
or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
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(iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(o) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
properties or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its properties
or assets or to the conduct of its business.
(p) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(q) Except as described in the Preferred Prospectus, there are
no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities with the securities
registered pursuant to the Registration Statement or with securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(r) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required
to be described in the Preferred Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Preferred Prospectus
or filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and Regulations.
(t) The Company and each of its subsidiaries has adopted a
commercially reasonable plan to investigate and correct any Year 2000
problems associated with (i) the operations of the business of the
Company and its subsidiaries and (ii) the services and products
provided by the Company and its subsidiaries. The cost of
implementing such plan and investigating and correcting any Year 2000
problems
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will not have a material adverse effect upon the condition (financial
or otherwise), business, properties, results of operations or
prospects of the Company and its subsidiaries taken as a whole. The
Preferred Prospectus, including the documents incorporated by
reference therein, complies with the Commission's Interpretive Release
No. 33-7558 dated July 29, 1998 related to Year 2000 compliance.
2. Purchase of the Shares by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell the 1,250,000 Shares
to the several Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase the number of Shares set opposite that Underwriter's
name in Schedule 1 hereto. The respective purchase obligations of the
Underwriters with respect to the Shares shall be rounded among the Underwriters
to avoid fractional shares, as the Underwriters may determine. The price of the
Shares shall be $_____ per Share.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date (as hereinafter defined) except upon payment for
all the Shares to be purchased on the Delivery Date as provided herein.
3. Offering of Shares by the Underwriters.
The Underwriters propose to offer the Shares for sale upon the terms
and conditions set forth in the Preferred Prospectus.
4. Delivery of and Payment for the Shares. Delivery of and payment
for the Shares shall be made at the office of Katten Muchin & Zavis, 525 West
Monroe Street, Suite 1600, Chicago, Illinois at 10:00 A.M., New York City time,
on the [third] [fourth] full business day following the date of this Agreement
or at such other date or place as shall be determined by agreement between the
Underwriters and the Company. This date and time are sometimes referred to as
the "Delivery Date." On the Delivery Date, the Company shall deliver or cause
to be delivered one or more global security certificates representing the Shares
to the Underwriters against payment to, or upon the order of, the Company of the
purchase price by wire transfer in immediately available funds to such
account(s) as the Company shall specify prior to the Delivery Date. Time shall
be of the essence, and delivery of the Shares at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Shares shall be registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC"). For the
purpose of expediting the checking and packaging of the global security
certificates for the Shares, the Company shall make the certificates
representing the Shares available for inspection by the Underwriters in New
York, New York, not later than 2:00 P.M., New York City time, on the business
day prior to the Delivery Date.
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5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus Supplement in a form approved by
the Underwriters and to file such Prospectus Supplement pursuant to
Rule 424(b) under the Securities Act not later than Commission's close
of business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 424(b)(2) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Preferred Prospectus prior to the Delivery Date except as
permitted herein; to advise the Underwriters, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Preferred Prospectus or any amended Preferred
Prospectus has been filed and to furnish the Underwriters with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise the Underwriters, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Preferred Prospectus, of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Preferred
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Preferred Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings), (ii) each Preliminary Prospectus and the Preferred
Prospectus and any amendment or supplement thereto and (iii) any
document incorporated by reference in the Preferred Prospectus
(excluding exhibits thereto); and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Shares and if at such time any events shall have occurred as a result
of which the Preferred Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
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any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Preferred Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the
Preferred Prospectus or to file under the Exchange Act any document
incorporated by reference in the Preferred Prospectus in order to
comply with the Securities Act or the Exchange Act, to notify the
Underwriters and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from time
to time reasonably request of an amended or supplemented Preferred
Prospectus which will correct such statement or omission or effect
such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Preferred Prospectus or any supplement
to the Preferred Prospectus that may, in the judgment of the Company
or the Underwriters, be required by the Securities Act or requested by
the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Preferred Prospectus, any
document incorporated by reference in the Preferred Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the
Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Delivery Date, to make
generally available to the Company's security holders and to deliver
to the Underwriters an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Delivery Date, to
furnish to the Underwriters copies of all materials furnished by the
Company to its stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which any securities of the Company
may be listed pursuant to requirements of, or agreements with, such
exchange or to the Commission pursuant to the Exchange Act or any rule
or regulation of the Commission thereunder;
(h) Promptly, from time to time, to take such action as the
Underwriters may reasonably request to qualify the Shares for offering
and sale under the securities laws of such jurisdictions as the
Underwriters may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the
Shares provided that in connection therewith the Company shall
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not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(i) To apply the net proceeds from the sale of the Shares as set
forth in the Preferred Prospectus;
(j) Not to offer, sell, contract to sell or otherwise dispose of
any additional securities of the Company substantially similar to the
Shares or any securities convertible into or exchangeable for or that
represent the right to receive any such similar securities, without
the consent (which consent shall not be unreasonably withheld) of
Lehman Brothers Inc. during the period beginning from the date of this
Agreement and continuing to and including the __________ day following
the Delivery Date;
(k) To use its best efforts to permit the Shares to be eligible
for clearance and settlement through DTC; and
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Shares and any taxes payable
in that connection; (b) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any amendments
and exhibits thereto; (c) the costs of distributing the Registration Statement
as originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Preferred Prospectus and any amendment or supplement to the Preferred
Prospectus, including any document incorporated by reference therein, all as
provided in this Agreement; (d) the costs of producing and distributing this
Agreement and any other related documents in connection with the offering,
purchase, sale and delivery of the Shares; (e) the fees and expenses of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 5 (h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(f) any fees charged by securities rating services for rating the Preferred
Stock; and (g) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as
provided in this Section 6 and in Section 11, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Shares which they may sell and the expenses of advertising
any offering of the Shares made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the
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Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Prospectus Supplement shall have been timely filed with
the Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
the Registration Statement or the Preferred Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration
Statement or the Preferred Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion
of Katten Muchin & Zavis, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Certificate of Designation, the Shares, the Registration Statement,
the Preferred Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(d) Mark J. Ohringer, Associate General Counsel of the Company,
shall have furnished to the Underwriters his written opinion, as
counsel to the Company, addressed to the Underwriters and dated the
Delivery Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Company and each of its "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X promulgated by the
Commission) (the "Significant Subsidiaries") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification (other than those jurisdictions in which
the failure to so qualify would not have a material adverse effect on
the Company or the Company and its subsidiaries taken as a whole), and
have all power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged.
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(ii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and implied covenant of good faith and
fair dealing.
(iii) All of the issued shares of capital stock of the Company
and each Significant Subsidiary, have been duly authorized and validly
issued and are fully paid and non-assessable; except as disclosed in
the Preferred Prospectus or any supplement thereto, all shares of each
of the Significant Subsidiaries are owned by the Company free and
clear of any pledge, lien, security interest, charge, claim, equitable
right or encumbrance of any kind. The Shares have been duly and
validly authorized and, upon issuance and delivery and payment
therefor in the manner described in this Agreement, will be duly and
validly issued, fully paid and non-assessable.
(iv) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the transfer of, any of the
Shares pursuant to the Company's charter or by-laws or any agreement
or other instrument known to such counsel.
(v) The Certificate of Designation has been duly authorized,
executed and filed with the Secretary of State of the State of
Delaware, is in full force and effect and conforms to all statements
relating thereto contained in the Preferred Prospectus.
(vi) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of
the Company and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(vii) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion,
the Prospectus was filed with the Commission pursuant to Rule
424(b)(3) of the Rules and Regulations on the date specified in such
opinion, the Prospectus Supplement was filed with the Commission
pursuant to Rule 424(b)(2) of the Rules and Regulations on the date
specified in such opinion and no stop order suspending the
effectiveness of the Registration Statement has been issued and, to
the knowledge
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of such counsel, no proceeding for that purpose is pending or
threatened by the Commission.
(viii) The Registration Statement and the Preferred Prospectus
and any further amendments or supplements thereto made by the Company
prior to the Delivery Date (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations; and
the documents incorporated by reference in the Preferred Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they were filed
with the Commission complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder.
(ix) The statements contained in the Preferred Prospectus under
the captions "Description of the Series D Preferred Stock," "Certain
Federal Income Tax Consequences" and "Description of Capital Stock",
insofar as they describe the Shares, legal matters and the capital
stock of the Company, constitute a fair summary thereof.
(x) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Preferred Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the
Rules and Regulations;
(xi) The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
herein will not conflict with, or constitute a material breach of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter
or by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties or assets, the effects of which
breach, violation or default would be material to the Company and its
subsidiaries taken as a whole.
(xii) No consent, approval, authorization, order, registration
or qualification of or with any Federal or state governmental agency
or body or any Delaware governmental agency or body acting pursuant to
the Delaware General Corporation Law or, to the best of such counsel's
knowledge, any Federal or state
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court or any Delaware court acting pursuant to Delaware General
Corporation Law is required for the issue and sale by the Company of
the Shares or the compliance by the Company with all of the provisions
of this Agreement, except for such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the applicable federal or state securities or
Blue Sky laws in connection with the issuance of the Shares.
(xiii) Except as described in the Preferred Prospectus, to the
best of such counsel's knowledge, there are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities with the securities registered
pursuant to the Registration Statement or with any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(xiv) Neither the Company nor any of its subsidiaries is
required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may state that (i) his opinion
is limited to matters governed by the Federal laws of the United
States of America, the laws of the State of Illinois, the General
Corporation Law of the State of Delaware and (ii) to the extent his
opinion relates to matters governed by the laws of the State of New
York, such counsel has assumed that the laws governing such matters
are identical to the internal laws, without giving effect to conflict
of law principles, of the State of Illinois and the interpretation
thereof. Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the
Delivery Date, in form and substance satisfactory to the Underwriters,
to the effect that such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, and
based on the foregoing, no facts have come to the attention of such
counsel which lead him to believe that (I) the Registration Statement,
as of the Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading,
or that the Preferred Prospectus contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading or
(II) any document incorporated by reference in the Preferred
Prospectus, when filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances
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under which they were made, not misleading. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Preferred Prospectus, except for the
statements made in the Preferred Prospectus under the captions
"Description of the Series D Preferred Stock" and "Description of
Capital Stock", insofar as such statements describe the Shares, legal
matters and the capital stock of the Company.
(e) The Underwriters shall have received from Katten Muchin &
Zavis, counsel for the Underwriters, such opinion or opinions, dated
the Delivery Date, with respect to the issuance and sale of the
Shares, the Registration Statement, the Preferred Prospectus and other
related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) At the time of execution of this Agreement, the Underwriters
shall have received from Arthur Andersen LLP a letter, in form and
substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Preferred Prospectus, as of a date not more than three days prior to
the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(g) With respect to the letter of Arthur Andersen LLP referred
to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Underwriters a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated the Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Preferred Prospectus, as of a date not more than three
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by
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the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of its Chairman of the Board,
its President or a Vice President and its Chief Financial Officer
stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 7(a) and 7(i)
have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Preferred Prospectus and, in their opinion (A)
as of the Effective Date, the Registration Statement and
Prospectus did not include any untrue statement of a material
fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) as of the date of the Prospectus Supplement, the
Preferred Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading, and (C) other than as described in the Preferred
Prospectus, since the Effective Date no event has occurred which
should have been set forth in a supplement or amendment to the
Registration Statement or the Preferred Prospectus.
(i) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Preferred
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Preferred Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Preferred Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered on the Delivery Date on the terms and in the
manner contemplated in the Preferred Prospectus.
(j) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Preferred Stock or any other outstanding securities of the Company by
any "nationally recognized
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statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations
and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of any of the Preferred Stock or any other outstanding
securities of the Company.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Shares being delivered on the Delivery Date on the terms and in the
manner contemplated in the Preferred Prospectus.
(l) On or prior to the Delivery Date, the Certificate of
Designation shall have been filed with the Secretary of State of the
State of Delaware.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Shares), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Preferred Prospectus, or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of
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qualifying any or all of the Shares under the securities laws of any state or
other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application") or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Preferred Prospectus, or in any amendment or supplement thereto, or in any
Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Preferred
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by or on behalf of the
Underwriters specifically for inclusion therein, which information consists
solely of the information specified in Section 8(e). The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who signed the Registration Statement,
each of its directors and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Preferred Prospectus, or in any
amendment or supplement thereto, or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Preferred Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company by or on behalf of that Underwriter specifically for inclusion therein,
which information consists solely of the information specified in Section 8(e),
and shall reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
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(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Underwriters shall have the right to employ counsel to represent jointly the
Underwriters and their respective officers, employees and controlling persons
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this
Section 8 if, in the reasonable judgment of the Underwriters, it is advisable
for the Underwriters and those officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and expenses
of such separate counsel shall be paid by the Company. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the
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Company on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (before deducting expenses) received by
the Company on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Shares under this Agreement, in each case as set forth in
the table on the cover page of the Preferred Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to (i) the concession and reallowance figures
appearing in the third paragraph and (ii) regarding possible overallotment,
stabilizing transactions and syndicate covering transactions in the penultimate
paragraph, each on page S-22 of the Prospectus Supplement, are correct and
constitute the only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Preferred Prospectus.
9. Defaulting Underwriters.
If, on the Delivery Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Shares which the defaulting
Underwriter agreed but failed to purchase on the Delivery Date in the respective
proportions which the number of Shares set opposite the name
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of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total number of Shares set opposite the names of all the remaining non-
defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Shares on the Delivery Date if the total number of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Shares to be purchased on the Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of Shares which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Underwriters who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Shares to be purchased on the Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Underwriters do not elect to purchase the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Delivery Date,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company, except that the Company will continue to
be liable for the payment of expenses to the extent set forth in Sections 6 and
11. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto who, pursuant to this Section 9, purchases Shares
which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Shares of a defaulting
or withdrawing Underwriter, either the Underwriters or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Preferred
Prospectus, or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to, and received by, the
Company prior to delivery of and payment for the Shares if, prior to that time,
any of the events described in Sections 7(i) (j) or (k), shall have occurred or
if the Underwriters shall decline to purchase the Shares for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Shares for delivery to the Underwriters or (b) the
Underwriters shall decline to purchase the Shares from the Company, in either
case by reason of any failure, refusal or inability on the part of the Company
to perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled by
the Company is not fulfilled, or because of termination of this Agreement
pursuant to Section 10, then the Company will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Shares, and upon demand the Company shall pay the full amount
thereof to the Underwriters. If this Agreement is terminated pursuant to
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Section 9 by reason of the default of one or more Underwriters, the Company
shall not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 212-526-6588), with a copy, in the case of any notice
pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Lehman Brothers Inc., 3 World Financial Center, 10th
Floor, New York, NY 10285;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Treasurer (Fax: 312-441-7586),
with a copy to Corporate Legal Services (Fax: 312-441-7456).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters by Lehman Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, and
their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Shares and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
-22-
<PAGE>
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-23-
<PAGE>
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
HELLER FINANCIAL, INC.
By _____________________________
Its ____________________________
Accepted:
Lehman Brothers Inc.
Chase Securities Inc.
Credit Suisse First Boston Corporation
As the several Underwriters named
in Schedule 1 hereto
By Lehman Brothers Inc.
By ________________________________
Authorized Representative
-24-
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
Number of
Underwriters Shares
------------ ---------
<S> <C>
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . .
Chase Securities Inc. . . . . . . . . . . . . . . . . . . . . .
Credit Suisse First Boston Corporation. . . . . . . . . . . . .
---------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . 1,250,000
=========
</TABLE>
-1-
<PAGE>
EXHIBIT 4(a)
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF
FIXED RATE NONCUMULATIVE PERPETUAL SENIOR PREFERRED STOCK,
SERIES D
(Liquidation Preference $100.00 Per Share)
_________________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
___________________________________
The undersigned DOES HEREBY CERTIFY that the following resolutions were
duly adopted by the Board of Directors (the "Board of Directors" or "Board") of
Heller Financial, Inc., a Delaware corporation (the "Corporation"), by unanimous
written consent dated as of November 6, 1998 and in accordance with the
provisions of Section 151 of the Delaware General Corporation Law:
RESOLVED, that pursuant to authority conferred upon the Board of Directors
by the provisions of the Amended and Restated Certificate of Incorporation (the
"Restated Certificate") and the Amended and Restated By-Laws (the "Restated By-
Laws") of the Corporation, the Board of Directors hereby creates one series of
the Senior Preferred Stock, $.01 par value per share, of the Corporation
("Senior Preferred Stock") and fixes the designation and voting powers of the
shares of such series as follows:
1. Designation. The designation of the series of Senior Preferred Stock
created by these resolutions shall be Fixed Rate Noncumulative Perpetual Senior
Preferred Stock, Series D ("Series D Senior Preferred Stock"). The number of
authorized shares constituting the Series D Senior Preferred Stock is 1,250,000.
The shares of the Series D Senior Preferred Stock shall have a stated value of
$100.00 per share.
2. Voting Rights. The Series D Senior Preferred Stock shall not have any
voting powers, either general or special, except as required by applicable law
and as stated herein.
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66 2/3% of all of the shares of Series D Senior Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of Series D Senior
Preferred Stock shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of any
of the provisions of the Restated Certificate, of the applicable Certificate of
Designation, Preferences and Rights or of any other certificate amendatory of or
supplemental to the Restated Certificate (including any certificate of
designation, preferences and rights or any similar document relating to any
series of Senior Preferred Stock or any series of the Preferred Stock, no par
value per share, of the Corporation ("Junior Preferred Stock")) or of the
Restated By-laws of the Corporation which would adversely affect the
preferences, rights, powers or privileges of the Series D Senior Preferred
Stock;
<PAGE>
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66 2/3% of all of the Series D Senior Preferred Stock and all other series of
Senior Preferred Stock for which dividends are noncumulative ("Noncumulative
Senior Preferred Stock") ranking on a parity with shares of the Series D Senior
Preferred Stock, either as to dividends or upon liquidation, at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of the Series D
Senior Preferred Stock and such other series of Noncumulative Senior Preferred
Stock shall vote together as a single class without regard to series, shall be
necessary for authorizing, effecting, increasing or validating the creation,
authorization or issue of any shares of any class of stock of the Corporation
ranking prior to the shares of the Series D Senior Preferred Stock as to
dividends or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or evidencing the right to
purchase any such prior shares.
(c) If, at the time of any annual meeting of stockholders for the
election of directors of the Corporation, a default in preference dividends on
the Series D Senior Preferred Stock or any other class or series of
Noncumulative Senior Preferred Stock ranking on a parity with the Series D
Senior Preferred Stock, either as to dividends or upon liquidation, and upon
which like voting rights have been conferred and are exercisable (excluding any
other class or series of Noncumulative Senior Preferred Stock expressly entitled
to elect additional directors to the Board by a vote separate and distinct from
the vote provided for in this paragraph (c), "Voting Noncumulative Senior
Preferred Stock") shall exist, the number of directors constituting the Board
shall be increased by two (without duplication of any increase made pursuant to
the terms of any other class or series of Voting Noncumulative Senior Preferred
Stock), and the holders of the Series D Senior Preferred Stock and the Voting
Noncumulative Senior Preferred Stock shall have the right at such meeting,
voting together as a single class without regard to class or series (to the
exclusion of the holders of Common Stock, Junior Preferred Stock and of any
series of Senior Preferred Stock which is not Voting Noncumulative Senior
Preferred Stock), to elect two directors of the Corporation to fill such newly
created directorships. Each director elected by the holders of shares of Series
D Senior Preferred Stock and any class or series of Voting Noncumulative
Preferred Stock in an election provided for by this Section 2(c) (herein called
a "Preferred Director") shall continue to serve as such director until the next
annual meeting of stockholders for the election of directors of the Corporation
and until such director's successor is elected and qualified, notwithstanding
that prior to the end of such term a default in preference dividends shall cease
to exist. Any Preferred Director may be removed by, and shall not be removed
except by, the vote of the holders of record of the outstanding shares of Series
D Senior Preferred Stock and Voting Noncumulative Senior Preferred Stock
entitled to have originally voted for such director's election, voting together
as a single class without regard to class or series, at a meeting of the
Corporation's stockholders, or of the holders of shares of Series D Senior
Preferred Stock and Voting Noncumulative Senior Preferred Stock, called for that
purpose. So long as a default in any preference dividends on the Series D Senior
Preferred Stock or any class or series of Voting Noncumulative Senior Preferred
Stock shall exist, (A) any vacancy in the office of a Preferred Director may be
filled (except as provided in the following clause (B)) by an instrument in
writing signed by the remaining Preferred Director and filed with the
Corporation and (B) in the case of the removal of any Preferred Director, the
vacancy may be filled by the vote of the holders of the outstanding shares of
Series D Senior Preferred Stock and Voting Noncumulative Senior Preferred Stock
entitled to have originally voted for the removed director's election, voting
together as a single class without regard to class or series, at the same
meeting at which such removal shall be voted. Each director appointed as
aforesaid shall be deemed for all purposes hereto to be a Preferred Director.
-2-
<PAGE>
Whenever the term of office of the Preferred Directors shall end and a
default in preference dividends shall no longer exist, the number of directors
constituting the Board shall be reduced by two. For purposes hereof, a "default
in preference dividends" on the Series D Series Preferred Stock or any class or
series of Voting Noncumulative Senior Preferred Stock shall be deemed to have
occurred whenever dividends upon the Series D Senior Preferred Stock or such
class or series of Voting Noncumulative Senior Preferred Stock have not been
paid or declared and set aside for payment for the equivalent of six full
quarterly dividend periods or more (whether or not consecutive), and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all dividends on the Series D Senior Preferred Stock or such other class
or series of Voting Noncumulative Senior Preferred Stock have been paid or
declared and set apart for payment regularly for at least one year (i.e., four
consecutive full quarterly dividend periods).
3. Preferences. The Series D Senior Preferred Stock will be fixed rate
noncumulative perpetual (i.e., will be redeemable, if at all, solely at the
option of the Corporation) Senior Preferred Stock and will rank senior to the
Junior Preferred Stock as to payments of dividends and upon liquidation.
4. Dividends.
(a) The holders of shares of the Series D Senior Preferred Stock shall
be entitled to receive cash dividends thereon at a rate per annum to be
determined by either of Richard J. Almeida, Chairman and Chief Executive
Officer, Lauralee E. Martin, Chief Financial Officer, or Anthony O'B. Beirne,
Executive Vice President and Treasurer (each, a "Special Financing Officer"),
but not in any event to exceed the rate that is equivalent to the higher of (i)
seven and one half percent (7 1/2%) or (ii) 200 basis points over the rate at
the time of determination on United States Treasury Bonds with a thirty year
maturity, such rate per annum to be computed on the basis of the stated value
thereof of $100.00 per share, and no more, payable (if declared) quarterly out
of the funds of the Corporation legally available for the payment of dividends.
Such dividends shall be payable, when, as and if declared by the Board or a duly
authorized committee thereof, on February 15, May 15, August 15 and November 15
of each year (each a "Dividend Payment Date"), commencing February 15, 1999.
Each such dividend shall be paid to the holders of record of shares of Series D
Senior Preferred Stock as they appear on the stock register of the Corporation
on the close of business on such record date, which shall be not less than five
nor more than 50 days (whether or not business days) preceding the Dividend
Payment Date, as shall be fixed by the Board or a duly authorized committee
thereof. The rights of holders of the Series D Senior Preferred Stock shall be
noncumulative. Accordingly, if the Board fails to declare a dividend on the
Series D Senior Preferred Stock payable on a Dividend Payment Date, then holders
of Series D Senior Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such Dividend Payment Date, and the
Corporation will have no obligation to pay dividends accrued for such period,
whether or not dividends on the Series D Senior Preferred Stock are declared
payable on any future Dividend Payment Date. The amount of dividends payable for
any period shorter than a full quarterly dividend period will be calculated on
the basis of a 360-day year consisting of twelve 30-day months.
(b) If, at any time prior to 18 months after the date of original
issuance of the Series D Senior Preferred Stock, one or more amendments to the
Internal Revenue Code of 1986, as amended (the "Code"), are enacted that reduce
the percentage of the dividends received deduction (generally, 70%) as specified
in Section 243(a)(1) of the Code or any successor provision (the "Dividends
Received Percentage"), the amount of each dividend payable (if declared) per
share of the Series D Senior Preferred Stock for dividend payments made on or
after the date of enactment of such change shall be increased by multiplying the
amount of the dividend payable determined as
-3-
<PAGE>
described above (before adjustment) by a factor, which shall be the number
determined in accordance with the following formula (the "DRD Formula") and
rounding the result to the nearest cent (with one-half cent rounded up):
1 - [.35 (1 - .70)]
----------------------
1 - [.35 (1 - DRP)]
For purposes of the DRD Formula, "DRP" means the Dividends Received
Percentage applicable to the dividend in question; provided, however, that if
the Dividends Received Percentage applicable to the dividend in question is less
than 50%, then the DRP will equal 0.50. No amendment to the Code, other than a
change in the percentage of the dividends received deduction set forth in
Section 243(a)(1) of the Code or any successor provision prior to 18 months
after the date of original issuance of the Series D Senior Preferred Stock, will
give rise to an adjustment. Notwithstanding the foregoing provisions, in the
event that, with respect to any such amendment, the Corporation shall receive
either (i) an unqualified opinion of independent recognized tax counsel based
upon the legislation amending or establishing the DRP or upon a published
pronouncement of the Internal Revenue Service (the "IRS") addressing such
legislation or (ii) a private letter ruling or similar form of assurance from
the IRS, in either case to the effect that such an amendment would not apply to
dividends payable on shares of Series D Senior Preferred Stock, then any such
amendment shall not result in the adjustment provided for pursuant to the DRD
Formula. The Corporation's calculation of the dividends payable, as so adjusted
and as certified accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the
Corporation, shall be final and not subject to review.
If any such amendment to the Code which reduces the Dividends Received
Percentage is enacted after a dividend payable on a Dividend Payment Date has
been declared but before such dividend has been paid, the amount of dividends
payable on such Dividend Payment Date will not be increased; but instead, an
amount, equal to the excess, if any, of (x) the product of the dividends paid by
the Corporation on such Dividend Payment Date and the DRD Formula (where the DRP
used in the DRD Formula would be equal to the greater of the reduced Dividends
Received Percentage and 0.50) over (y) the dividends paid by the Corporation on
such Dividend Payment Date, will be payable (if declared) on the next succeeding
Dividend Payment Date to holders of Series D Senior Preferred Stock on the
record date applicable to such succeeding Dividend Payment Date, in addition to
any other amounts payable on such Dividend Payment Date.
In addition, if any such amendment to the Code is enacted that reduces the
Dividends Received Percentage and such reduction retroactively applies to a
Dividend Payment Date as to which the Corporation previously paid dividends on
shares of Series D Senior Preferred Stock (each, an "Affected Dividend Payment
Date"), the Corporation will pay (if declared) additional dividends (the
"Retroactive Dividends") on the next succeeding Dividend Payment Date (or if
such amendment is enacted after the dividend payable on such Dividend Payment
Date has been declared, on the second succeeding Dividend Payment Date following
the date of enactment), to holders of Series D Senior Preferred Stock on the
record date applicable to such succeeding Dividend Payment Date, in an amount
equal to the excess, if any, of (x) the product of the dividends paid by the
Corporation on each Affected Dividend Payment Date and the DRD Formula (where
the DRP used in the DRD Formula would be equal to the greater of the reduced
Dividends Received Percentage and 0.50, applied to each Affected Dividend
Payment Date) over (y) the dividends paid by the Corporation on each Affected
Dividend Payment Date.
-4-
<PAGE>
Retroactive Dividends will not be paid in respect of the enactment of any
amendment to the Code if such amendment would not result in an adjustment due to
the Corporation having received either an opinion of counsel or tax ruling
referred to in the third preceding paragraph. The Corporation will only make
one payment of Retroactive Dividends.
No adjustments in the dividends payable by the Corporation will be made,
and no Retroactive Dividends will be payable by the Corporation, because of any
amendment to the Code at any time beginning 18 months after the date of original
issuance of the Series D Senior Preferred Stock that reduces the Dividends
Received Percentage.
In the event that the amount of dividends payable per share of Series D
Senior Preferred Stock shall be adjusted pursuant to the DRD Formula and/or
Retroactive Dividends are to be paid, the Corporation will cause notice of each
such adjustment and, if applicable any Retroactive Dividends, to be sent to each
holder of record of the shares of Series D Senior Preferred Stock at such
holder's address as the same appears on the stock register of the Corporation.
(c) So long as any shares of Series D Senior Preferred Shares are
outstanding, no dividend (other than a dividend in Common Stock, Junior
Preferred Stock or any other stock of the Corporation ranking junior to the
Series D Senior Preferred Stock as to dividends and upon liquidation and other
than as provided in subsection (c) of this Section 4) shall be declared or paid
or set aside for payment, nor shall any other distribution be declared or made
upon the Common Stock, Junior Preferred Stock or any other stock of the
Corporation ranking junior to or on a parity with the Series D Senior Preferred
Stock as to dividends or upon liquidation, nor shall any Common Stock, Junior
Preferred Stock or other stock of the Corporation ranking junior to or on a
parity with the Series D Senior Preferred Stock as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(nor shall any funds be paid to, or made available for, a sinking fund for the
redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to the
Series D Senior Preferred Stock as to dividends and upon liquidation) unless, in
each case, the full dividends on all outstanding shares of the Series D Senior
Preferred Stock shall have been, or contemporaneously are, paid, or declared and
a sum sufficient for the payment thereof has been or is set apart for such
payment, for the then-current dividend period (without accumulation of accrued
and unpaid dividends for prior dividend periods unless previously declared).
(d) When dividends are not paid or declared and set aside for payment
in full, as aforesaid, upon the shares of Series D Senior Preferred Stock and
any other Senior Preferred Stock ranking on a parity as to dividends with the
Series D Senior Preferred Stock, all dividends declared upon shares of Series D
Senior Preferred Stock and any other class or series of Senior Preferred Stock
ranking on a parity as to dividends with the Series D Senior Preferred Stock
shall be declared pro rata so that the amount of dividends declared per share on
the Series D Senior Preferred Stock and such other Senior Preferred Stock shall
in all cases bear to each other the same ratio that dividends per share on the
shares of Series D Senior Preferred Stock for the then-current dividend period
(without accumulation of accrued and unpaid dividends for prior dividend periods
unless previously declared) and such other Senior Preferred Stock bear to each
other. Holders of shares of Series D Senior Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full dividends for the then-current dividend period (without accumulation of
accrued and unpaid dividends for prior dividend periods unless previously
declared), as herein provided, on the Series D Senior Preferred Stock.
5. Redemption.
-5-
<PAGE>
(a) The shares of Series D Senior Preferred Stock shall not be
redeemable prior to a date to be determined by any Special Financing Officer,
provided that such date shall not be earlier than ten (10) years after the end
of the calendar quarter in which the Series D Senior Preferred Stock is issued.
On and after such initial redemption date, the Corporation, at its option, may
redeem shares of the Series D Senior Preferred Stock, in whole or in part, at
any time or from time to time, at a redemption price of $100.00 per share, plus
accrued and unpaid dividends thereon (whether or not earned or declared) for the
then-current dividend period (without accumulation of accrued and unpaid
dividends for prior dividend periods unless previously declared), including any
dividends payable due to changes in the Dividends Received Percentage and
Retroactive Dividends to the date fixed for redemption. In the event that fewer
than all the outstanding shares of Series D Senior Preferred Stock are to be
redeemed pursuant to this Section 5(a), the number of shares to be redeemed
shall be determined by the Board and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board or by any other
method as may be determined by the Board in its sole discretion to be equitable.
(b) Notwithstanding the foregoing, if dividends for the then-current
dividend period to the redemption date (without accumulation of accrued and
unpaid dividends for prior dividend periods unless previously declared) have not
been declared and paid or set apart for payment on all outstanding shares of
Series D Senior Preferred Stock, no shares of Series D Senior Preferred Stock
shall be redeemed unless all outstanding shares of Series D Senior Preferred
Stock are simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of Series D Senior Preferred Stock; provided,
however, that the foregoing shall not prevent the purchase or acquisition of
shares of Series D Senior Preferred Stock pursuant to a tender or exchange offer
made on the same terms to all holders of Series D Senior Preferred Stock and
mailed to the holders of record of the Series D Senior Preferred Stock at such
holders' addresses as the same appear on the stock register of the Corporation;
provided, further, that if some, but less than all, of the shares of the Series
D Senior Preferred Stock are to be purchased or otherwise acquired pursuant to
such tender or exchange offer and the number of shares so tendered exceeds the
number of shares so to be purchased or otherwise acquired by the Corporation,
the shares of the Series D Senior Preferred Stock tendered will be purchased or
otherwise acquired by the Corporation on a pro rata basis (with adjustments to
eliminate fractions) according to the number of such shares tendered by each
holder tendering shares of Series D Senior Preferred Stock.
(c) In the event the Corporation shall redeem shares of Series D
Senior Preferred Stock pursuant to subsection (a) of this Section 5, notice of
such redemption shall be given by first class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the redemption date, to each holder
of record of the shares to be redeemed, at such holder's address as the same
appears on the stock register of the Corporation. Each such notice shall state:
(i) the redemption date; (ii) the number of shares of Series D Senior Preferred
Stock to be redeemed and, if fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be redeemed from such holder; (iii)
the redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(d) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
funds for the payment of the redemption price) dividends on the shares of Series
D Senior Preferred Stock so called for redemption under subsection (a) of this
Section 5 shall cease to accrue, and said shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the redemption
price against delivery
-6-
<PAGE>
of such shares) shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board shall so require and the notice shall so state), such
shares shall be redeemed by the Corporation at the applicable redemption price.
In case fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(e) If the Corporation gives notice of redemption, then, by 12:00
Noon, Chicago time, on the redemption date, the Corporation shall irrevocably
deposit with a paying agent (which may be an affiliate of the Corporation) (the
"Paying Agent"), which shall be a bank or trust company organized and in good
standing under the laws of the United States, the State of Illinois or the State
of New York and having capital, surplus and undivided profits aggregating at
least $10,000,000, funds sufficient to pay the applicable redemption price,
including any accrued and unpaid dividends to the redemption date, and shall
give the Paying Agent irrevocable instructions and authority to pay the
redemption price to the holder or holders of record of the shares of Series D
Senior Preferred Stock upon surrender of certificates for such shares (properly
endorsed or assigned for transfer). If notice of redemption shall have been
given, then upon the date of such deposit, all rights of holders of the shares
so called for redemption shall cease, except the right of the holders of such
shares to receive the redemption price against delivery of such shares, but
without interest, and such shares shall cease to be outstanding. The Corporation
shall be entitled to receive, from time to time, from the Paying Agent, the
interest, if any, earned on such funds deposited with the Paying Agent, and the
holders of any shares to be redeemed with such funds shall have no claim to any
such interest. Any funds so deposited which are unclaimed at the end of two
years from such redemption date shall upon demand be repaid to the Corporation,
after which the holders of the shares of Series D Senior Preferred Stock so
called for redemption shall be entitled to look only to the Corporation for
payment thereof.
6. Liquidation Preference.
(a) Upon the dissolution, liquidation or winding up of the
Corporation, voluntary or involuntary, the holders of the shares of Series D
Senior Preferred Stock shall be entitled to receive and be paid out of the
assets of the Corporation available for distribution to its stockholders, before
any payment or distribution of assets shall be made on the Common Stock, the
Junior Preferred Stock or any other class of stock of the Corporation ranking
junior to the Series D Senior Preferred Stock upon liquidation, the amount of
$100.00 per share, plus an amount equal to the sum of all accrued and unpaid
dividends (whether or not earned or declared) on such shares for the then-
current dividend period (without accumulation of accrued and unpaid dividends
for prior dividend periods unless previously declared) to the date of final
distribution.
(b) Neither the sale of all or substantially all the property or
business of the Corporation nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 6.
(c) After the payment to the holders of the shares of Series D Senior
Preferred Stock of the full preferential amounts provided for in this Section 6,
the holders of the shares of Series D Senior Preferred Stock, as such, shall
have no right or claim to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of the shares of Series D Senior Preferred Stock and
any other class or series of shares of
-7-
<PAGE>
Senior Preferred Stock ranking on a parity with the Series D Senior Preferred
Stock as to such distribution upon any dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, shall be insufficient to pay
in full all preferential amounts to which such holders are entitled, no such
distribution shall be made on account of the Series D Senior Preferred Stock or
any shares of any other class or series of Senior Preferred Stock ranking on a
parity with the shares of Series D Senior Preferred Stock upon such dissolution,
liquidation or winding up, unless proportionate distributive amounts shall be
paid on account of the shares of Series D Senior Preferred Stock and such shares
of Senior Preferred Stock ratably, in proportion to the full distributable
amounts for which holders of all such parity shares are respectively entitled
upon such dissolution, liquidation or winding up.
7. Conversion and Exchange. The holders of shares of the Series D Senior
Preferred Stock shall not have any rights to convert such shares into, or to
exchange such shares for, shares of Common Stock, any other class or classes of
capital stock (or any other security) or any other series of any class or
classes of capital stock (or any other security) of the Corporation.
8. Priority as to Certain Distributions. As a series of Senior Preferred
Stock, the shares of the Series D Senior Preferred Stock shall be entitled to
such rights and priorities, and subject to such limitations, as to dividends as
are set forth in these resolutions and in the Restated Certificate of the
Corporation.
9. Sinking Fund. No sinking fund shall be provided for the purchase or
redemption of shares of the Series D Senior Preferred Stock.
10. Ranking. Without limitation to any provision set forth in these
resolutions or in the Restated Certificate, it is hereby confirmed and expressly
declared that the Series D Senior Preferred Stock constitutes a series of Senior
Preferred Stock and, accordingly, ranks senior to all shares of Junior Preferred
Stock as to dividends and distributions of assets upon liquidation, dissolution
or winding up.
For purposes hereof, any class or series or stock of the Corporation shall
be deemed to rank:
(a) prior to the Series D Senior Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series D Senior
Preferred Stock;
(b) on a parity with the Series D Senior Preferred Stock as to
dividends or distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates, redemption prices or
liquidation preferences per share thereof are different from those of the Series
D Senior Preferred Stock, if the holders of such class or series of stock and of
the Series D Senior Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in proportion to their respective dividend amounts or
liquidation preferences, without preference or priority to the holders of Series
D Senior Preferred Stock; and
(c) junior to the Series D Senior Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up, if such
stock shall be Common Stock or Junior Preferred Stock or if the holders of the
Series D Senior Preferred Stock shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may
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<PAGE>
be, in preference or priority to the holders of shares of such class or series.
11. Exclusion of Other Rights. Unless otherwise required by law, shares
of the Series D Senior Preferred Stock shall not have any rights, including
preemptive rights, or preferences other than those specifically set forth herein
or as provided by applicable law.
12. Miscellaneous. The Board of Directors may interpret the provisions
hereof to resolve any inconsistency or ambiguity which may arise or be revealed
and if such inconsistency or ambiguity reflects an inaccurate provision hereof,
the Board of Directors may, in appropriate circumstances, authorize the filing
of a certificate of correction pursuant to Delaware law.
13. Change in Number of Shares. As provided in the Restated Certificate
of the Corporation, but subject to applicable law, the Board of Directors may
increase or decrease the number of shares of this series of Senior Preferred
Stock subsequent to the issue of shares of this series, but not below the number
of shares of Series D Senior Preferred Stock then outstanding.
FURTHER RESOLVED, that the 1,250,000 shares of Series D Senior Preferred
Stock authorized for issuance pursuant to the resolutions of this Board of
Directors all constitute Senior Preferred Stock within the 50,000,000 shares
authorized pursuant to the Restated Certificate of the Corporation.
The undersigned DOES HEREBY FURTHER CERTIFY that the following resolution
was duly adopted on December ______, 1998 by Richard J. Almeida, Chairman and
Chief Executive Officer of the Corporation pursuant to the authorization
conferred upon him by the Board of Directors as set forth above:
RESOLVED, that pursuant to the authority conferred upon Richard J. Almeida,
Chairman and Chief Executive Officer of Heller Financial, Inc. (the
"Corporation"), by resolutions adopted by the Board of Directors of the
Corporation by Unanimous Written Consent dated as of November 2, 1998 (the
"Resolutions"), Richard J. Almeida hereby (1) fixes the dividend rate on the
Series D Senior Preferred Stock of the Corporation at ______% per annum, which
rate does not exceed the higher of (i) seven and one half percent (7 1/2%) or
(ii) 200 basis points over the rate at the time of determination on United
States Treasury Bonds with a 30 year maturity and which rate is subject to
adjustment as provided in Section 4 of the Resolutions and (2) sets the first
date on which any shares of the Series D Senior Preferred Stock may be redeemed
as ______________, which date is not earlier than ten (10) years after the end
of the calendar quarter in which the Series D Senior Preferred Stock is being
issued.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by Kurt J. Roemer, its Senior
Vice President and Assistant Treasurer, and attested to by Mark J. Ohringer, its
Assistant Secretary, this ___ day of December, 1998.
By:
Kurt J. Roemer
Senior Vice President and
Assistant Treasurer
[SEAL]
ATTEST
By:
Mark J. Ohringer
Assistant Secretary
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<PAGE>
Exhibit 4(b)
Description of Specimen Preferred Stock Certificate
Face of Certificate:
The front of the specimen Preferred Stock certificate (the "Certificate")
contains the logo of the Company above the name of the Company and the Preferred
Stock's CUSIP number. The Certificate is signed by Debra H. Snider, Executive
Vice President, Chief Administrative Officer, General Counsel and Secretary of
the Company, and Richard J. Almeida, Chairman and Chief Executive Officer of the
Company. The Company's corporate seal appears in the middle of the lower edge of
the Certificate. The face of the Certificate also contains the following
language:
This certifies that ________________________ is the owner of _____________
fully-paid and non-assessable shares of Fixed Rate Noncumulative Perpetual
Senior Preferred Stock, Series D, of HELLER FINANCIAL, INC. (the "Corporation"),
a Delaware corporation. The shares represented by this certificate are
transferable only on the stock transfer books of the Corporation by the holder
of record hereof, or by the holder's duly authorized attorney or legal
representative, upon the surrender of this certificate properly endorsed. This
certificate is not valid unless countersigned and registered by the
Corporation's transfer agent and registrar.
In witness whereof, the Corporation has caused this certificate to be
executed by the facsimile signatures of its duly authorized officers and has
caused a facsimile of its corporate seal to be hereunto affixed.
Reverse of Certificate:
The back of the Certificate contains the following language:
The Corporation will furnish without charge to each stockholder who so
requests, a copy of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof of the Corporation and the qualifications, limitations or restrictions
of such preferences and/or rights. Such request may be made to the Corporation
or its transfer agent.
The reverse of the Certificate also contains standard stock transfer
instructions.
